Episode Details

A single analytics export can decide whether your damages story looks like math or guesswork. This week, we take on a spoliation decision out of the Southern District of New York that every litigator handling ESI should read, because the lost evidence is not email or chat logs. It’s Google Analytics website traffic data, the kind your marketing team lives in and your discovery plan might never mention until it’s too late.

We unpack PharmacyChecker.com v. National Association of Boards of Pharmacy and the nightmare scenario behind the sanctions motion: Google’s Universal Analytics gets sunset, an IT employee downloads data without attorney direction, and a 19-month window of granular source-by-source traffic data (Google vs Bing vs others) disappears for good. When a party’s antitrust claims and damages theory depend on proving lost organic search traffic, that missing granularity becomes a hole you can drive expert cross-examination through.

From there, we walk step-by-step through Rule 37(e)(1): duty to preserve, “reasonable steps,” whether the ESI can be replaced, and the prejudice finding that caps what a court can do. Judge Resnick’s prejudice analysis is unusually nuanced, and it directly shapes the remedies: no overbroad preclusion, but required caveats that the missing-period numbers are estimates, permission to tell the jury what happened, a potential jury instruction, and a targeted fee award. Along the way, we pull out practical eDiscovery lessons for SaaS preservation, dynamic databases, and meet and confer clarity when someone promises to “refresh the data.”

Subscribe to the Meet and Confer podcast, share this with a colleague who handles discovery, and leave a review if these case-driven breakdowns help you stay ahead. What’s one third-party platform in your current matters you would preserve today if you knew access could disappear tomorrow?

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.